Phoneprasith v. Clarke

On
August 16, 2017, the Court screened Plaintiff's
complaint. (Docket #11). The Court found that Plaintiff's
complaint was not viable because he attempted to include
piecemeal amendments to the document. Id. at
3.[1]
The Court required Plaintiff to offer an amended complaint no
later than September 6, 2017. Id. at 3-4. On
September 1, 2017, Plaintiff submitted an amended complaint.
(Docket #12).

As
noted in its August 16, 2017 screening order on the initial
complaint, the Court is required to screen complaints brought
by prisoners seeking relief against a governmental entity or
an officer or employee of a governmental entity. See
(Docket #11 at 1); 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint or portion thereof if the prisoner has
raised claims that are legally “frivolous or malicious,
” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b). The same
standards cited in the original screening order apply here.
(Docket #11 at 1-3).

Plaintiff's
amended complaint advances two claims. First, pursuant to
Milwaukee County Jail (“Jail”) policy set by
Defendant David A. Clarke, Jr. (“Clarke”), the
Milwaukee County Sheriff, Plaintiff was not allowed to
receive visits from his daughter, a minor child at the time.
(Docket #12 at 2). Plaintiff states that the policy was
enforced against him from February 2008 until July 2011 while
he was detained at the Jail. Id. Inmates have a
basic right to maintain familial relations, subject to the
institution's penological needs. Stojanovic v.
Humphreys, 309 F.App'x 48, 50-52 (7th Cir. 2009).
Plaintiff may therefore proceed on this claim as one for
violation of his substantive due process rights. Id.
Reading the amended complaint liberally, the Court further
finds that Clarke may be sued in his personal capacity.
Though not explicitly stated by Plaintiff, it is reasonable
to infer from his allegations that Clarke, as the head
policymaker for the Jail, is personally responsible for
creating and enforcing the visitation policy. See Doyle
v. Camelot Care Ctrs., Inc., 305 F.3d 603, 615 (7th Cir.
2002).

Plaintiff's
second claim is for “denial of access to an adequate
law library.” (Docket #12 at 4). He claims that the
Jail's limited law library and its procedures for
handling copy requests slowed his preparation and filing of
legal documents. Id. at 3-5. This is in the vein of
an access-to-courts claim. The Seventh Circuit has
established a two-part test for analyzing such claims:
“[f]irst, the prisoner must prove that prison officials
failed to assist in the preparation and filing of meaningful
legal papers. . . . Second, he must show some quantum of
detriment caused by the challenged conduct of state
officials.” Lehn v. Holmes, 364 F.3d 862, 868
(7th Cir. 2004) (quotation omitted). In particular, the
second element

requires plaintiffs to make specific allegations as to the
prejudice suffered because of the defendants' alleged
conduct. This is because the mere denial of access to a
prison law library or to other legal materials is not itself
a violation of a prisoner's rights; his right is to
access the courts, and only if the defendants'
conduct prejudices a potentially meritorious challenge to the
prisoner's conviction, sentence, or conditions of
confinement has this right been infringed.

Plaintiff's
access-to-courts claim cannot proceed for two reasons. First,
the focus of Plaintiff's allegations is on the general
inadequacy of the Jail's library system. Merely
“establishing that his prison's law library or
legal assistance program is subpar in some theoretical
sense” does not prove the first element described by
Lehn. Lewis v. Casey, 518 U.S. 343, 351
(1996). Second, Plaintiff alleges only that his ability to
create and file legal documents was delayed, not prevented
entirely. Delays in filing are not the same as prejudice;
“[i]t is missing indispensable legal arguments, not
missing a judicial deadline, ” that is the foundation
of an access-to-courts claim. Lilly v. Jess, 189
F.App'x 542, 544 (7th Cir. 2006). “Many a lawyer
with full access to all the world's legal materials has
missed a deadline.” Id.

In sum,
the court finds that Plaintiff may proceed against Defendant
on the following claim pursuant to 28 U.S.C. § 1915A(b):
interference with Plaintiff's right to visit with his
daughter, in violation of his substantive due process rights
under the Fourteenth Amendment.

Accordingly,
IT IS ORDERED that pursuant to the informal
service agreement between Milwaukee County and this court,
copies of Plaintiff's amended complaint and this order
are being electronically sent today to Milwaukee County for
service on the Milwaukee County defendant;

IT
IS FURTHER ORDERED that, pursuant to the informal
service agreement between Milwaukee County and this court,
Defendant shall file a responsive pleading to the amended
complaint within sixty (60) days of receiving electronic
notice of this order; and

IT
IS FURTHER ORDERED that the plaintiff identified as
A. P. be and the same is hereby DISMISSED
from this action.

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